Supreme Court Litigation Clinic to Argue Digital Phone Search Case

In January, the Supreme Court granted the Supreme Court Litigation Clinic’s petition for certiorari in Riley v. California. The petition, drafted last spring by Julia Reese ’13, Ben Chagnon ’14, and Seth Lloyd ’14, presents the question whether the Fourth Amendment allows police officers to search the digital contents of smart phones they seize from people incident to arrest, without seeking any kind of warrant or judicial authorization. Ben and Seth worked during the winter quarter, with the assistance of Professor Jeff Fisher and in collaboration with the Juelsgaard Intellectual Property and Innovation Clinic, to draft the clinic’s opening brief on the merits. This spring, the clinic will draft a reply brief and travel to Washington, D.C. for the oral argument on April 29. Excitement is running high: the case offers the Court its first opportunity to opine on the scope of privacy in the digital age and could produce a landmark decision.

pvine

March 24, 2014 at 4:09 pm

As usual, the Clinic’s brief in Riley was excellent. But, I highly doubt that the Court will adopt the categorical ban on warrantless cell/smartphone searches that you seek.

Instead, like in Maryland v. King, the Court is likely to use a totality of the circumstances approach, balancing the degree of intrusion that actually took place in this particular case against any legitimate justification that the government had for conducting the search (of text messages, photos & videos).

Under this approach, it is likely that the Court will hold that the search of Riley’s smartphone was unreasonable. Riley was only arrested for a misdemeanor; the police didn’t have probable cause (or, for that matter, Terry reasonable suspicion or Gant reasonable belief) to believe that evidence of that misdemeanor would be found in his smartphone; and the search was not particularized, i.e., limited to particular files/apps that there was probable cause to believe had a connection to the crime of arrest.

However, if, based on the chronological sequence of events, in particular the observation of gang paraphernalia, the police had probable cause to arrest Riley for a felony, such as violating California Penal Code 186.22(a),then, under the same balancing framework discussed above, they arguably would have probable cause to believe that evidence of that particular felony would be found in text messages, photos and videos located on his smartphone. And, a search that was limited to those particular locations would, arguably, be reasonable under the Fourth Amendment, notwithstanding the absence of a warrant or exigent circumstances.